AS TO THE ADMISSIBILITY OF
Application No. 25809/94
by Michael HORST
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 October 1994
by Michael HORST against Austria and registered on 30 November 1994
under file No. 25809/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1942 and residing
in Budapest. Before the Commission he is represented by Mr. P. Hauser,
a lawyer practising in Salzburg.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
On 3 March 1993 the Salzburg Federal Police Authority
(Bundespolizeidirektion) convicted the applicant under the Road Traffic
Act (Straßenverkehrsordnung) of having refused to undergo a
breathalyser test and under the Motor Vehicles Act (Kraftfahrzeug-
gesetz) of having failed to carry with him the registration certificate
of his car. It imposed fines of 9000 and 200 AS or eight days' and six
hours' imprisonment in default respectively.
On 17 December 1993 the Salzburg Independent Administrative
Panel (unabhängiger Verwaltungssenat), after an oral hearing,
dismissed the appeal.
On 14 February 1994 the applicant lodged a complaint with the
Administrative Court (Verwaltungsgerichtshof).
On 16 March 1994 the Administrative Court, relying on Section 33a
of the Administrative Court Act (Verwaltungsgerichtshofgesetz),
declined to deal with the applicant's complaint.
B. Relevant domestic law
1. Articles 129a and 129b in the version of the 1988 Amendment of
the Federal Constitution (Federal Law Gazette No. 1988/685) provided
for the institution of Independent Administrative Panels.
Independent Administrative Panels deal, inter alia, with appeals
against penal orders issued by administrative authorities. Their
members are lawyers, appointed by the Regional Government for a term
of office of at least 6 years. They are independent and must not
receive instructions. They can only be dismissed from office upon a
decision of the Independent Administrative Panel itself.
The Salzburg Regional Act of 4 July 1990 on the Independent
Administrative Panel for Salzburg (Gesetz über den Unabhängigen
Verwaltungssenat des Landes Salzburg, LGBl. 1990/65) repeats to a large
extent the provisions of the Federal Constitution. Section 3 para. 2
of the Act provides that members are initially appointed for a term of
office of six years; renewal of appointment is for ten years.
2. Section 33a of the Administrative Court Act (Verwaltungs-
gerichtshofgesetz), as in force from 1 January 1991, reads as follows:
"The Administrative Court may decline to deal with a complaint
against a decision of an Independent Administrative Panel in an
administrative criminal case, if no prison sentence or a fine
exceeding AS 10,000 has been imposed and the Administrative
Court's decision would not involve the determination of a legal
question of fundamental importance. A legal question of
fundamental importance is involved in particular if the
challenged decision of the Independent Administrative Panel is
at variance with the Administrative Court's case-law, if no such
case-law exists or if the legal questions at issue have not been
answered uniformly in the Administrative Court's case-law."
3. Section 99 para. 1 (b) of the Road Traffic Act (Strassenverkehrs-
ordnung) provides that whoever, when driving a car, refuses to undergo
a breathalyser test or refuses an examination by a medical officer as
to whether he is under the influence of alcohol commits and
administrative offence, punishable by a fine between 8000 and 50000 AS
or imprisonment in default of between one and six weeks.
Section 102 para. 5 (b) of the (Kraftfahrzeuggesetz) provides
that the driver of a car has to carry with him the registration
certificate of his car. Section 134 para. 1 provides that the failure
to comply with the duties mentioned in the Motor Vehicles Act is an
administrative offence punishable by a fine of up to 30000 AS.
COMPLAINT
The applicant complains that the Administrative Court's refusal
to deal with his complaint violated Article 2 of Protocol No. 7.
THE LAW
The applicant complains that the Administrative Court's refusal
to deal with his complaint violated Article 2 of Protocol No. 7 (P7-2),
which, insofar as relevant, reads as follows:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence
reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall
be governed by law."
The Commission, having regard to the nature of the applicant's
offences as a failure to comply with a specific regulation, their
qualification under domestic law as administrative criminal offences
and the severity of the punishment involved, finds that the applicant
was convicted of criminal offences within the meaning of Article 2 of
Protocol No. 7 (P7-2) (see mutatis mutandis Eur. Court H.R., Öztürk
judgment of 21 February 1984, Series A no. 73, p. 18, para. 50;
Gradinger judgment of 23 October 1995, paras. 35-36, to be published
in Series A no. 328-C).
The Commission observes that the Salzburg Federal Police
Authority cannot be considered as a tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see e.g. Eur. Court
H.R., Gradinger judgment of 23 October 1995 loc. cit., para. 42;
Schmautzer judgment of 23 October 1995, para. 34 to be published in
Series A no. 328-A) and consequently not as a tribunal for the purpose
of Article 2 of Protocol No. 7 (P7-2). However, having regard to the
criteria developed in its case-law by the Court for the qualification
of tribunals under Article 6 para. 1 (Art. 6-1) of the Convention and
the relevant domestic provisions on the institution of Independent
Administrative Panels, the Commission finds that the Salzburg
Independent Administrative Panel has to be regarded as a tribunal
within the meaning of Article 2 para. 1 of Protocol No. 7 (P7-2-1) (see
mutatis mutandis Eur. Court H.R., Ringeisen judgment of 16 July 1971,
Series A no. 13, p.39, para. 95; Sramek judgment of 22 October 1984,
Series A no. 84, pp. 17-18, paras. 36-38; Ettl judgment of
23 April 1987, Series A no. 117, pp. 17-19, paras. 34-41).
Article 2 of Protocol No. 7 (P7-2) thus applies to the
applicant's convictions by the Salzburg Independent Administrative
Panel and he was therefore in principle entitled to a review of his
convictions or sentences by a higher tribunal.
The Commission recalls that reference to the grounds for review
being governed by law in the second sentence of paragraph 1 of Article
2 of Protocol No. 7 (P7-2-1) clearly shows that the Contracting States
have a discretion as to the modalities for the exercise of the right
to review. Thus, different rules govern review by a higher tribunal
in the various Member States of the Council of Europe. In some member
States a person wishing to appeal to the highest tribunal must apply
for leave to appeal. Such a right to apply for leave to appeal to a
higher court can in itself be regarded as a review within the meaning
of Article 2 of Protocol No. 7 (P7-2) (No. 18066/91, Dec. 6.4.94, D.R.
77, p. 37; No. 20087/92, Dec. 26.10.95, D.R. 83, p. 5). Decisions
given by the Administrative Court pursuant to Section 33a of the
Administrative Court Act may be equated to decisions given on
applications for leave to appeal (No. 26808/95, Dec. 16.1.96,
unpublished).
In the present case the Administrative Court, which had the
competence to review the Independent Administrative Panel's decision
of 17 December 1993, decided pursuant to Section 33a of the
Administrative Court Act not to deal with the applicant's complaint.
In these circumstances the Commission does not find any
appearance of a violation of the applicant's right under Article 2 of
Protocol No. 7 (P7-2) to a review of his conviction or sentence by a
higher tribunal.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy